Proceeding in the matter of the estate of Mary Norton, deceased, wherein Minnie Nortin, administratrix of the estate of Mary Norton, deceased, instituted proceedings to determine who were the heirs and distributees of the deceased and wherein Gladys Crawford, executrix of the estate of Emma Gardner, deceased, the State Land Board and Clarence H. Nortin were claimants. From decrees dismissing their petitions, the State Land Board and Gladys Crawford, executrix of the estate of Emma Gardner, deceased, appeal.
MODIFIED. Mary Norton died intestate on March 3, 1942, leaving as her only surviving relatives a son, Clarence H. Nortin (born Clarence H. Norton); a grandson, Claude Harold Norton, the son of Clarence H. Nortin; and a sister, Emma Gardner, since deceased. *Page 344
This case is a proceeding in the Circuit Court for Multnomah County, Probate Department, to determine who are the heirs and distributees of Mary Norton, deceased. The claimants in the court below are the son of the intestate; the executrix of the deceased sister; and the State Land Board, which asserts that the estate has escheated. We have heretofore rendered a decision adverse to the claim of the grandson. Norton v. Norton, 175 Or. 115,151 P.2d 719, 156 A.L.R. 617. On this appeal the rights of the sister and the State Land Board are involved. They have appealed from decrees dismissing their petitions. The respondents are Clarence H. Nortin and Minnie Nortin, administratrix of the estate of Mary Norton, deceased. Should it be determined that the sister's petition states facts sufficient to show that she is entitled to inherit the estate, the case of the State Land Board must fail.
In view of contentions now advanced it will be well to state briefly the issue and the ground of decision on the former appeal.
Claude Harold Norton filed a petition in the Circuit Court alleging in substance that his father, Clarence H. Nortin, had feloniously killed Mary Norton and thereby had lost his right to inherit her estate under the provisions of § 16-203, O.C.L.A., and that he, the said Claude Harold Norton, was entitled to the estate as "the only living lineal descendant of said Mary Norton except her said son." Demurrers to the petition were filed by Clarence H. Nortin; Gladys Crawford, executrix of the estate of Emma Gardner, deceased; and the State Land Board. The Circuit Court "dismissed" the demurrer of the State Land Board, but sustained the other demurrers, and, as stated, entered a decree that Claude Harold Norton was not an heir *Page 345 and not entitled to receive the estate of Mary Norton, deceased. He appealed, and the only question in this court, as in the Circuit Court, was whether his petition stated facts sufficient to show that he was the heir. We held that the demurrers were properly sustained and affirmed the decree.
"The son", it was said, "because of his allegedly felonious slaying, is not appointed by law to succeed to the real estate of the decedent. Other lineal descendants are so appointed only in case there is no child of the intestate living at the time of her death. Despite the serious charge against him, decedent's son was living at the time of decedent's death, hence other lineal descendants are not appointed by law to succeed to her real estate."
And it was added, though unnecessary to the decision, that the sister, the question of whose status was not then before the court and not presented in argument, was not appointed by law to succeed to the decedent's estate. Being dictum, this statement is not the law of the case (3 Am. Jur., Appeal and Error, 551, § 996) and does not preclude us from now considering and deciding the question raised by the petition of the sister's executrix.
That petition alleges the relationship of Emma Gardner to Mary Norton; the felonious slaying of Mary Norton by her son, Clarence H. Nortin; and that the executrix of the estate of Emma Gardner, deceased, is entitled to the whole of the estate of Mary Norton, deceased.
It is the contention of the respondents that our decision that the grandson is not an heir compels a like disposition of the sister's claim. That decision was based upon the first subdivision of § 16-101, O.C. *Page 346 L.A., providing that the real property of an intestate shall descend:
"In equal shares to his or her children, and to the issue of any deceased child by right of representation; and if there be no child of the intestate living at the time of his or her death, such real property shall descend to all his or her other lineal descendants; and if all such descendants are in the same degree of kindred to the intestate, they shall take such real property equally, or otherwise they shall take according to the right of representation".
As appears from the excerpt quoted above from the opinion of the former appeal, we held that because there was a child of Mary Norton living at the time of her death, namely, Clarence H. Nortin, the alleged slayer, the condition upon which depends the right of a lineal descendant of that child to inherit was not present. The respondents argue that the same reasoning applies to the following clause of the third subdivision of § 16-101:
"If the intestate shall leave no lineal descendants, neither husband nor wife, nor father nor mother, such real property shall descend in equal shares to the brothers and sisters of the intestate".
It is said that in fact Mary Norton died leaving lineal descendants, namely, her son and her grandson, and therefore the condition upon which depends the right of the sister to inherit is not present.
But this contention ignores another provision of § 16-101 which, in our opinion, makes the respondent's position untenable. Subdivision (6) reads:
*Page 347"If the intestate shall leave no lineal descendants or kindred, such real property shall escheat to the state of Oregon."
It will be observed that the identical phrase, "if the intestate shall leave no lineal descendants", appears both in Subd. (6) and Subd. (3). That phrase is employed in each instance for the purpose of declaring the contingency which shall determine the succession to the real property of an intestate. It is an established rule of statutory construction that:
"In the absence of anything in the statute clearly indicating a contrary intent, where the same word or phrase is used in different parts of a statute, it will be presumed to be used in the same sense throughout; and where its meaning in one instance is clear, this meaning will be attached to it elsewhere, * * *." 59 C.J. 1003, § 597, quoted in Cordon v. Gregg, 164 Or. 306, 317, 97 P.2d 732, 101 P.2d 414. To the same effect, see State ex rel. Eugene v. Keeney, 123 Or. 508, 512, 262 P. 943, 946; James v. City of Newberg, 101 Or. 616, 619, 201 P. 212.
There is nothing in § 16-101 to indicate or suggest that the legislature intended to use the phrase in question in one sense in Subd. (3) and in a different sense in Subd. (6), and it is, therefore, our duty to attach the same meaning to that phrase throughout.
The meaning of the phrase in Subd. (6) is not open to doubt. The legislature was speaking of lineal descendants, and, as well, of kindred, qualified to inherit. In 1864 when Subd. (6) of § 16-101 was enacted, Ch. 15, p. 719, Deady's General Laws of Oregon 1845-1864, establishing a procedure for escheats, was in existence. Section 1 of that chapter provided:
*Page 348"When any person shall die without heirs, leaving any real or personal property in this state, the same shall escheat to, and become the property of the state."
The word "heirs" in the foregoing provision was, we think, used broadly as meaning "those succeeding to the estate of one dying intestate", 16 Am. Jur., Descent and Distribution, 821, § 49. And both by that provision and Subd. (6) of § 16-101, O.C.L.A., the legislature was declaring the circumstances in which the property of an intestate should escheat. They are inpari materia and to be read together. It is unreasonable to suppose that it was intended by § 1 of Ch. 15, General Laws of Oregon 1845-1864, to provide for an escheat in all cases where there was no one to succeed to the estate (even though there might be a person in existence who, but for some disqualification would inherit), and by Subd. (6) of § 16-101, O.C.L.A., to say, by inference at least, that an estate should not escheat because of the existence of lineal descendants who could not inherit. If so literal an interpretation of Subd. (6) were adopted it might well be that the property of an intestate would vest in no one. That, indeed, would be the result in this case if the facts stated in the petition of the executrix of the deceased sister are true, for, under the construction insisted upon by the respondents, there is no one to take the property. Neither the son, because he feloniously took the life of his mother; nor the grandson, as we have already determined; nor the sister, nor the state, because the intestate left lineal descendants.
This is not our construction of the statute, so far as it affects the sister and the state, but the logical consequence of a construction which ignores what seems to us to be the manifest intention of the legislature.
We are therefore of the opinion that the phrase "if the intestate shall leave no lineal descendants", as used in Subd. (6), refers to lineal descendants qualified *Page 349 to succeed to the estate of the intestate, and that, under the rule of statutory construction which has been stated, it bears the same meaning in Subd. (3). In that view the petition of the executrix of the estate of the deceased sister states a valid cause of suit, for it shows that, apart from the sister, there was no person living and qualified to take the estate at the time of the intestate's death.
It is apparent that the judge of the court below, in reaching a contrary conclusion, felt that he was governed by the dictum we have quoted from our former opinion. For the reasons stated, however, we find ourselves unable to adhere to what we there said upon the question now presented for the first time in this court.
This disposition of the claim of the deceased sister renders it necessary to affirm the decree as to the State Land Board, for under any view of the case the estate will not escheat. The sole remaining controversy is between Clarence H. Nortin, the son, and Gladys Crawford, executrix of the estate of Emma Gardner, deceased. The only question left to be determined is whether Clarence H. Nortin feloniously took his mother's life; if that charge shall be established the executrix will succeed to the estate; otherwise the estate will be vested in Clarence H. Nortin.
The decree as to Gladys Crawford, executrix, is reversed with costs. The decree as to the State Land Board is affirmed, and the cause is remanded to the Probate Court for further proceedings in conformity to this opinion.